Op-Ed: Are Benjamin Netanyahu’s alleged ‘crimes’ really crimes?

Israeli Prime Minister Benjamin Netanyahu will be indicted, pending a hearing, for three alleged acts of corruption, according to Israel’s attorney general. But are the “crimes” at issue really crimes? Has the Israeli legislature — the Knesset — actually criminalized the conduct the prime minister is charged with committing? If not, would the Knesset ever pass statutes to criminalize such conduct? Is it proper for prosecutors to stretch existing laws to fit his conduct?

The first charge relates to the receipt of gifts — cigars, Champagne, jewelry and other items often gifted by friends to friends. If Netanyahu received a dozen cigars and bottles of Champagne and a few pair of cuff links from a friend who asked him to do the kind of favor politicians are often asked to do for constituents, no one would accuse him of a crime. But because the prosecutor believes he took too many of such items — the value, it’s said, comes to hundreds of thousands of dollars — he is being prosecuted.

But how much is too much for purposes of criminalizing gifts and favors? Where is the precise line one must willfully cross to make such gifts a crime? There is no written law or regulation that expressly states how much is too much.

If legislators contemplated such a law, they’d start by considering their own experience: “How many gifts have I received from friends and supporters?” and “How many laws have I voted for that may have helped those friends and constituents?” There would be little agreement over where wrongdoing began.

I’m reminded of the U.S. Supreme Court justice who admitted he couldn’t define hard core pornography but added, “I know it when I see it.” To which another justice replied, “Pornography is in the eye of the beholder.” Such vague and ever-shifting non-definitions should never form the basis for a criminal charge. No one in a democracy should have to guess where the line is that separates questionable actions from crimes. Netanyahu is being charged with guessing wrong.

The second and third charges share a fundamental flaw in that they seek to criminalize normal political behavior: Efforts by politicians to secure fair or positive media coverage, or minimize negative coverage, in exchange for particular votes or actions.

Netanyahu is being charged with accepting (or discussing accepting) the “bribe” of better coverage. But if seeking, accepting or expecting better media coverage were an element of crime, there would not be enough prisons in Israel or any other democracy to house the number of politicians who voted a certain way or who did certain favors with the expectation that it would improve their coverage by the media. Politicians are always asking their press aides: “How will my vote or other politicking sit with the media?” There are countless explicit and implicit deals made between politicians and reporters.

One of the two media cases is based on a conversation Netanyahu had with a newspaper publisher that he knew was recorded by an aide. In it, the publisher allegedly agreed to reduce his paper’s attacks on the prime minister and his family if Netanyahu supported legislation that would benefit the newspaper. In the end, more than 40 Knesset members voted for the bill, but it was eventually killed by Netanyahu’s disapproval. The Knesset members who voted aye and subsequently received better coverage, as could be anticipated, aren’t being prosecuted. Netanyahu, who killed the bill and continued to get nasty coverage, is being prosecuted.

In the other media case, Netanyahu supported regulatory decisions made by civil servants that benefited a media mogul whose outlets were attacking him. But is it a crime for a politician to vote for a media-supported law in the expectation that he would get better coverage? No legislator ever has or ever would vote for such a law, because they know that they have cast such votes.

The larger point is that Israel has vague, elastic and open-ended criminal laws that can be stretched to target political opponents. So does the United States. In our country, such laws include obstruction of justice, conspiracy and witness tampering, as we have seen in the ongoing investigations of President Trump. In Israel, these include breach of trust and bribery — the crimes with which Netanyahu is being charged.

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The prime minister has denied the charges and accused the attorney general of political motives, calling the the announcement of the intended indictments — shortly before elections in April — an attempt to “oust the right from power.”

It may well be that partisan considerations aren’t motivating the investigations or the potential prosecutions. But the precedents the attorney general is establishing will lie around like a loaded gun, ready to be picked up and misused for partisan advantage in future cases. Weaponizing accordion-like criminal statutes in the context of partisan politics threatens democracy, the rule of law, and in the case of the Netanyahu charges, the freedom of the press.

A fundamental question in any democracy is whether a single individual — in this case an appointed attorney general — should be empowered to make decisions that may thwart the will of the voters. Netanyahu is a controversial prime minister, but no one can dispute his strength in defending Israel’s security, or his many achievements over a long tenure. The allegations against him have been spelled out. His fate belongs in the hands of voters, not investigators or the courts.

Alan M. Dershowitz is the emeritus Felix Frankfurter Professor of Law at Harvard University and author of “Taking the Stand: My Life in the Law.” Twitter: @AlanDersh.

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